Sweeping Changes Proposed to the DMCA’s Notice-and-Takedown System

Fenwick & West LLP

Fenwick & West LLP

On December 22, 2020, Senator Thom Tillis (R-NC), then chair of the Senate Judiciary Subcommittee on Intellectual Property, released a discussion draft of the Digital Copyright Act of 2021 (DCA) that would make sweeping changes to multiple areas of the 1998 Digital Millennium Copyright Act (DMCA). Senator Patrick Leahy (D-VT), current chair of the Subcommittee, continues to work with Ranking Member Tillis but has not announced any plans for action on the DCA. Summarized below are key revisions being suggested by the DCA to the notice-and-takedown system.

Notice and Staydown. The most significant revision would be to replace the existing notice-and-takedown system with a notice-and-staydown system. Under the DCA, an online service provider (OSP) that receives a notification of claimed infringement must ensure that any “complete or near complete copy of a copyrighted work” targeted by a notification, whether uploaded by the same user or different users, is removed from the provider’s systems and networks. This would require either a continuing search of the OSP’s systems and networks for such works or the use of an online filter.

In addition, OSPs operating in both the U.S. and Europe want U.S. law to align with the European Union’s Directive on Copyright in the Digital Single Market, which also imposes a notice-and-staydown system. OSPs could then establish one global staydown process rather than regional procedures that comply with different requirements. However, EU members are not required to implement the Directive until June 6, 2021, and the consensus is that most countries will miss the deadline.

Notifications of Claimed Infringement. The DCA specifies that complainants who submit notifications of claimed infringement for multiple copyrighted works need only identify a “non-exhaustive representative list” of the allegedly infringed works on the website. This would muddy the statute’s already unclear requirement of a “representative list.” OSPs would not know if they must investigate their systems for additional infringed works like those on the representative list.

Furthermore, the DCA would allow parties claiming that the same copyrighted work is being infringed by multiple items or at multiple locations on a single website to identify “not less than 1 such item of material and not less than 1 such location, rather than specific web addresses for each location.” This would require OSPs to search their systems for the locations of other copies of allegedly infringed works on the list when complainants do not specify in notifications the URLs for all allegedly infringed works.

Counter Notifications. The DCA would require OSPs to establish and maintain a counter-notice process, which is currently optional.

Alternative Noticing Process. The DCA would require an OSP with a public-facing website to establish and make available a procedure by which a copyright owner may enter a voluntary agreement with the provider for an alternative noticing process.

Model Repeat Infringer Policy. The DCA would require the U.S. Copyright Office to develop a model repeat infringer policy with “minimum requirements for service providers.” It is unclear why the model policy would be mandatory rather than exemplary or what requirements the model policy might impose on OSPs. Some have expressed concern that the model policy could mandate that OSPs terminate internet access to repeat infringers.

Civil Actions Against OSPs. The DCA proposes to add to the existing misrepresentation section language which could establish a new cause of action against OSPs for removal or disabling of access to material or activity.

If enacted, the above provisions, along with other changes proposed by the DCA, would add substantial obligations for OSPs to the DMCA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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